1. In the present application by way of Notice to Show Cause (NTSC) dated 21/5/2025 Mwaita Hamisi Mbeta & Mwanaisha Said Mulumbo (Administrators of the Estate of the late Habari Hamisi Mbeta (Deceased) are the applicants. They were the 1st respondents in the primary application. I will therefore continue to refer to them as 1st respondents. By the said NTSC they are seeking execution of a decree of the lower court by way of applying to this court for release of the sum of KShs 978,075/= being half of the judgment sum awarded to the them as plaintiffs in Kwale Magistrates Court Civil Case No. 47 of 2015 against Associated Motors Ltd, (who are the only respondents to the NTSC) and Alfred Kiprop Chengwony, alias Changwony Alfred, Kiscol and Nelion Trading Limited as defendants and all who were found jointly liable in the suit arising out of a road traffic accident. The last three are not parties to the NTSC.
2. Associated Motors Ltd, the respondents herein (but whom I will continue to refer to as applicants), delayed to file their appeal against the judgment and decree of the lower court by some three days. Their draft memorandum of appeal dated 23/8/2024 was filed in court on 27/8/2024 as an annexture to an application by way of notice of motion dated 26/8/2024 under certificate of urgency seeking enlargement of time to file the appeal and stay of execution of the trial court’s judgment pending hearing and determination of the appeal.
3. At the ex-parte stage, this court granted interim relief to Associated Motors (the applicants herein) in terms that:
“pending further directions on the application, there shall be a stay of execution of the trial magistrate’s judgment delivered on 24/7/2024 on condition that the appellant deposits half of the decretal sum in court within 7 days from the date of this order.”
4. On 22/11/2024 after inter partes hearing of the application this court granted the applicant’s notice of motion dated 27/8/2024 seeking extension of time to file appeal and stay of execution in the following terms:
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCCC No. 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide by the Appeal.
5. The applicant, Associated Motors Ltd came back to court in a notice of motion dated 5/12/2024 seeking a review of the said orders premised on the ground that there is an apparent mistake or error on the face of the record for various reasons being:
a. First, that the court had already admitted the applicant’s appeal in its directions issued on 28/8/2024 and therefore its order of 22/11/2024 directing that “the applicant is granted leave to file appeal out of time and to do so within the next 14 days,” was in error as it amounts to the applicant being required to file the appeal twice.
b. Secondly, that at the ex parte stage, the court having ordered the applicant to deposit half of the decretal sum amounting to KShs 978,075/=in court which the applicant did, it was an error or mistake for this court in the ruling dated 22/11/2024 to find that the applicant had not furnished any security and direct the applicant to deposit the other half in court.
c. Thirdly, that the court also erred in directing the applicant to deposit the entire decretal sum in court when the judgment delivered by the trial court was against the applicant, the 2nd, 3rd and 4th respondents and that it is only fair and in the interest of justice that the other half be borne by the 2nd, 3rd and 4th respondents. That, the applicant does not have the means to raise the other half considering it had already furnished security at the ex-parte stage and its finances were stretched. That the 3rd and 4th respondents had also filed an appeal in Mombasa, being Civil Appeal No. E250 of 2024 over the same judgment, as well as filed an application for stay of execution in the same case and it was only fair that they shoulder the other half of the decretal amount and in any case, they had not been condemned to deposit any security.
d. Finally, that the decretal amount is KShs. 1,956,150/= and not KShs. 2,500,000 as held by this court in its ruling under review.
6. That application was considered by the court and dismissed, this court finding that there was no apparent error on the face of the record to warrant a review. This court found that the applicant had not addressed the issue of providing security for the due execution of the decree in its application for extension of time to file the appeal, yet it is a requirement to obtain an order for stay of execution. Nevertheless, the court held that upon considering the application, the applicant would need to deposit the entire decretal sum in court by depositing the balance of the judgment sum that had not been deposited at the ex parte stage.
7. The applicant did not abide by the court’s orders to deposit the balance of the judgment sum in court and therefore the order of stay of execution and extension of time to file appeal stood spent.
8. The 1st respondent herein (decree holder in the lower court) therefore brought the present application by way of NTSC in execution of the decree. seeking release of the amount deposited in court as security for the due performance of the decree.
9. The applicant, Associated Motors Limited, objected to the NTSC by way of a replying affidavit sworn on 28th May 2025 by Rabeccah Kivinda, the Human Resource Manager of the applicant.
10. She deposed that this court had in a matter related to the present one, Kwale High Court Civil Appeal E008 of 2025 Kisco 1, Nelion Tradinf Limited v Hamisi Mbeta and Mwanasha Said Malumbo (Administrators of the Estate of the Late Habari Hamisi Mbeta (Deceased), Alfred Kiprop Changwony alias Changwony Alfred and Associated Motors Limited, issued an order of stay and in its ruling dated 7/5/2025 the order of stay was against the entire judgment meaning that the applicant herein, Associated Motors Limited was also protected. She deposes further, as she had argued in the prior application that since the decree is against four judgment debtors (the applicant, 2nd, 3rd and 4th respondents) and on its part, it had deposited half of the judgment sum in court, it would be unfair for it to have the entire half of the decretal sum deposited in court by itself released. She deposes further that if the appeal is found in their favour (that is the co-defendants in the lower court) after the money is released it would be difficult and impossible for the 1st respondents to refund the same as they had revealed in the pleadings that they were not financially stable. That the applicant will be highly prejudiced if the amount deposited in court is released to the 1st respondent and it is only fair that they wait until the appeal in Kwale High Court Civil Appeal No. E008 of 2025 is heard and determined, which in any case is not going to take long and should be completed within this year.
11. The parties relied on the NTSC and the replying affidavit as respectively filed without making submissions. However, the issue of release of the amount deposited in court had first been sought by way of a letter by counsel for the 1st respondent dated 8/4/2025 to the Deputy Registrar requesting for release of the funds to the advocate for the 1st respondent.
12. The matter was placed before this court for mention for directions on the issue on 21/5/2025. At the mention, learned counsel for the 1st respondent argued that the money was deposited as security for due performance of the decree and the security had to serve its purpose.
13. Learned counsel for the applicant argued that if the 1st respondent wished to have the deposited amount released to them then they ought to file a formal application. She submitted further that in Kwale HCCA No. E008 of 2025, the appellants had obtained a stay order on condition that they deposit the entire decretal sum in court and they were going to do so. According to learned counsel, if the appellant’s in that case deposited the amount, then the stay of execution order would also benefit the applicants, Associated Motors Limited.
14. Mr. Baraza, learned counsel for the appellants in that case was present in court and supported the sentiments expressed by the applicant’s learned counsel. He said that his clients were yet to but would deposit the decretal amount.
15. Learned counsel for the 1st respondent submitted that the stay of execution orders in the other file were not in favour of the applicants herein but for the 3rd and 4th respondents and applicants could not purport to benefit therefrom though the backdoor.
16. I have considered the application by way of NTSC by the 1st respondent for the release of the money deposited as security herein and the oral submissions by counsels of the parties. The point for determination is whether or not the 1st respondent has made out a case for the release of the amount deposited in court by the applicant as security for the due execution of the decree obtained before the lower court.
17. It is a fact that the applicant has no order of stay in its favour stopping execution of the decree from the lower court. Secondly, the applicant has no appeal pending before this court and so it would have no reason to have an order of stay of execution in its favour. An order of stay of execution pending appeal is premised on a pending appeal. As it is in this case, the applicant failed to abide by this court’s order to deposit the other half of the judgment sum in court in order to have the time to lodge its appeal extended. This court has not been furnished with an order of stay from the Court of Appeal against that order.
18. The applicant has advanced various reasons why the money deposited in court should not be released to the 1st respondents. First that it cannot be made to bear the burden of paying the entire or even half of the decretal sum because judgment was against four defendants. It is its argument that in that case, each of the defendants should be made to bear one quarter of the judgment sum only. Secondly, it argues that it stands to benefit from the appeal filed by the 3rd and 4th respondents herein in Kwale HCCA No. E008 of 2024.
19. The applicant does not dispute the fact that the judgment in the lower court was made jointly and severally against the defendants.
20. Order 1 Rules 4(b) of the Civil Procedure Rules, 2010 provides with respect to judgment against several defendants as follows; -
“Judgment may be given without amendment—
a) …
b) against such one or more of the defendants as may be found to be liable according to their respective liabilities.”
21. Black’s law Dictionary 10th Edition defines joint and several liability as follows: -
“Liability that may be apportioned among two or more parties or to only one or a few select members of the group at the adversary’s discretion. Thus, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.”
22. It follows that when liability is made to apply jointly and severally, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity against the non-paying party. For instance, following that concept, the court in the case of Astral Aviation Ltd v Tadis Travel & Tours Ltd & another [2018] KEHC 1169 (KLR) the Court said:
“In my earlier ruling delivered on July 10, 2018, I noted that the Court of Appeal issued the order for payment of costs against the applicants/defendants jointly and severally. Under such circumstances, the respondent is at liberty to execute against either all the judgment debtors or any one of them. It would be up to a party against whom execution has been levied to pursue the co-judgment debtors for compensation”
23. Similarly, the case of Hellen Njenga v Wachira Murage & another [2015] KEHC 4861 (KLR) cited the decision in Dubai Electronics –versus- Total Kenya & 2 Others Civil Case No. 870 of 1998 (unreported) where the court explained the concept of joint and several liability as follows;
“Clearly therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several the plaintiff has the option either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them. That is my understanding of joint and several liability.”
24. It follows from the foregoing authorities that the 1st respondent can proceed to execute and obtain the whole of the decretal sum from any of the co-defendants before the lower court. The paying co-defendant will then claim compensation from the others. In the present case, the 1st respondent is going for execution against the applicant for half of the judgment sum.
25. This leads us to the next argument advanced by the applicant, what if the appeal by the co-defendants succeeds? Generally, the outcome of the appeal should only bind the parties to the appeal. As things stand now, the applicant has no appeal pending before this court. However, the applicant is a party to the pending appeal filed by the 3rd and 4th respondents herein as a respondent. No doubt the applicant will be supporting the 3rd and 4th respondent’s appeal as it is interested in a positive outcome for them. How the outcome of the appeal filed by the 3rd and 4th respondents affects the applicant depends on whether the issues raised in the pending appeal affect the applicant or are specific to the 3rd and 4th respondents. I have no hesitation in finding that the issues affect the applicant as well, seeing that they would be on either liability or assessment of damages or both. Whichever way, the applicants will be affected by the outcome of the appeal.
26. But that does not mean that the 1st respondent cannot proceed to execute the decree against the applicant since there is no order stopping them from doing so, the earlier order of stay having lapsed. Consequently, there is no basis for this court to deny the NTSC seeking release of the money deposited in court by the applicant as security for the due performance of the decree. The issue of the ability of the 1st respondents’ to pay back the sum deposited in court as security if the appeal goes against them does not arise at this point in time. The same was considered and determined in the application for stay.
27. In the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR) the court in considering the requirement for deposit of security pending appeal held that:-
“… a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal…. Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” (Emphasis in italics by this court).
28. It is apparent from the foregoing holding of the court that security for due performance of the decree should be applied for the purpose for which it was intended, that is, payment to the decree holder, if the applicant was not successful at the appeal without putting the respondent/decree holder through the hardship of a laborious process of execution.
29. In the circumstances, I find that the application by the 1st respondents by way of NTSC herein has merit and the same is allowed. It is ordered that the whole sum of KShs 978,075/= deposited in court by the applicant to be released to the 1st respondents through their advocates on record.
30. Orders accordingly.
31. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 16th day of July 2024.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for applicant.
N/A for the 1st respondent.
N/A for 2nd, 3rd and 4th respondents.
Ummu: Court Assistant.
2. Associated Motors Ltd, the respondents herein (but whom I will continue to refer to as applicants), delayed to file their appeal against the judgment and decree of the lower court by some three days. Their draft memorandum of appeal dated 23/8/2024 was filed in court on 27/8/2024 as an annexture to an application by way of notice of motion dated 26/8/2024 under certificate of urgency seeking enlargement of time to file the appeal and stay of execution of the trial court’s judgment pending hearing and determination of the appeal.
3. At the ex-parte stage, this court granted interim relief to Associated Motors (the applicants herein) in terms that:
“pending further directions on the application, there shall be a stay of execution of the trial magistrate’s judgment delivered on 24/7/2024 on condition that the appellant deposits half of the decretal sum in court within 7 days from the date of this order.”
4. On 22/11/2024 after inter partes hearing of the application this court granted the applicant’s notice of motion dated 27/8/2024 seeking extension of time to file appeal and stay of execution in the following terms:
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCCC No. 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide by the Appeal.
5. The applicant, Associated Motors Ltd came back to court in a notice of motion dated 5/12/2024 seeking a review of the said orders premised on the ground that there is an apparent mistake or error on the face of the record for various reasons being:
a. First, that the court had already admitted the applicant’s appeal in its directions issued on 28/8/2024 and therefore its order of 22/11/2024 directing that “the applicant is granted leave to file appeal out of time and to do so within the next 14 days,” was in error as it amounts to the applicant being required to file the appeal twice.
b. Secondly, that at the ex parte stage, the court having ordered the applicant to deposit half of the decretal sum amounting to KShs 978,075/=in court which the applicant did, it was an error or mistake for this court in the ruling dated 22/11/2024 to find that the applicant had not furnished any security and direct the applicant to deposit the other half in court.
c. Thirdly, that the court also erred in directing the applicant to deposit the entire decretal sum in court when the judgment delivered by the trial court was against the applicant, the 2nd, 3rd and 4th respondents and that it is only fair and in the interest of justice that the other half be borne by the 2nd, 3rd and 4th respondents. That, the applicant does not have the means to raise the other half considering it had already furnished security at the ex-parte stage and its finances were stretched. That the 3rd and 4th respondents had also filed an appeal in Mombasa, being Civil Appeal No. E250 of 2024 over the same judgment, as well as filed an application for stay of execution in the same case and it was only fair that they shoulder the other half of the decretal amount and in any case, they had not been condemned to deposit any security.
d. Finally, that the decretal amount is KShs. 1,956,150/= and not KShs. 2,500,000 as held by this court in its ruling under review.
6. That application was considered by the court and dismissed, this court finding that there was no apparent error on the face of the record to warrant a review. This court found that the applicant had not addressed the issue of providing security for the due execution of the decree in its application for extension of time to file the appeal, yet it is a requirement to obtain an order for stay of execution. Nevertheless, the court held that upon considering the application, the applicant would need to deposit the entire decretal sum in court by depositing the balance of the judgment sum that had not been deposited at the ex parte stage.
7. The applicant did not abide by the court’s orders to deposit the balance of the judgment sum in court and therefore the order of stay of execution and extension of time to file appeal stood spent.
8. The 1st respondent herein (decree holder in the lower court) therefore brought the present application by way of NTSC in execution of the decree. seeking release of the amount deposited in court as security for the due performance of the decree.
9. The applicant, Associated Motors Limited, objected to the NTSC by way of a replying affidavit sworn on 28th May 2025 by Rabeccah Kivinda, the Human Resource Manager of the applicant.
10. She deposed that this court had in a matter related to the present one, Kwale High Court Civil Appeal E008 of 2025 Kisco 1, Nelion Tradinf Limited v Hamisi Mbeta and Mwanasha Said Malumbo (Administrators of the Estate of the Late Habari Hamisi Mbeta (Deceased), Alfred Kiprop Changwony alias Changwony Alfred and Associated Motors Limited, issued an order of stay and in its ruling dated 7/5/2025 the order of stay was against the entire judgment meaning that the applicant herein, Associated Motors Limited was also protected. She deposes further, as she had argued in the prior application that since the decree is against four judgment debtors (the applicant, 2nd, 3rd and 4th respondents) and on its part, it had deposited half of the judgment sum in court, it would be unfair for it to have the entire half of the decretal sum deposited in court by itself released. She deposes further that if the appeal is found in their favour (that is the co-defendants in the lower court) after the money is released it would be difficult and impossible for the 1st respondents to refund the same as they had revealed in the pleadings that they were not financially stable. That the applicant will be highly prejudiced if the amount deposited in court is released to the 1st respondent and it is only fair that they wait until the appeal in Kwale High Court Civil Appeal No. E008 of 2025 is heard and determined, which in any case is not going to take long and should be completed within this year.
11. The parties relied on the NTSC and the replying affidavit as respectively filed without making submissions. However, the issue of release of the amount deposited in court had first been sought by way of a letter by counsel for the 1st respondent dated 8/4/2025 to the Deputy Registrar requesting for release of the funds to the advocate for the 1st respondent.
12. The matter was placed before this court for mention for directions on the issue on 21/5/2025. At the mention, learned counsel for the 1st respondent argued that the money was deposited as security for due performance of the decree and the security had to serve its purpose.
13. Learned counsel for the applicant argued that if the 1st respondent wished to have the deposited amount released to them then they ought to file a formal application. She submitted further that in Kwale HCCA No. E008 of 2025, the appellants had obtained a stay order on condition that they deposit the entire decretal sum in court and they were going to do so. According to learned counsel, if the appellant’s in that case deposited the amount, then the stay of execution order would also benefit the applicants, Associated Motors Limited.
14. Mr. Baraza, learned counsel for the appellants in that case was present in court and supported the sentiments expressed by the applicant’s learned counsel. He said that his clients were yet to but would deposit the decretal amount.
15. Learned counsel for the 1st respondent submitted that the stay of execution orders in the other file were not in favour of the applicants herein but for the 3rd and 4th respondents and applicants could not purport to benefit therefrom though the backdoor.
16. I have considered the application by way of NTSC by the 1st respondent for the release of the money deposited as security herein and the oral submissions by counsels of the parties. The point for determination is whether or not the 1st respondent has made out a case for the release of the amount deposited in court by the applicant as security for the due execution of the decree obtained before the lower court.
17. It is a fact that the applicant has no order of stay in its favour stopping execution of the decree from the lower court. Secondly, the applicant has no appeal pending before this court and so it would have no reason to have an order of stay of execution in its favour. An order of stay of execution pending appeal is premised on a pending appeal. As it is in this case, the applicant failed to abide by this court’s order to deposit the other half of the judgment sum in court in order to have the time to lodge its appeal extended. This court has not been furnished with an order of stay from the Court of Appeal against that order.
18. The applicant has advanced various reasons why the money deposited in court should not be released to the 1st respondents. First that it cannot be made to bear the burden of paying the entire or even half of the decretal sum because judgment was against four defendants. It is its argument that in that case, each of the defendants should be made to bear one quarter of the judgment sum only. Secondly, it argues that it stands to benefit from the appeal filed by the 3rd and 4th respondents herein in Kwale HCCA No. E008 of 2024.
19. The applicant does not dispute the fact that the judgment in the lower court was made jointly and severally against the defendants.
20. Order 1 Rules 4(b) of the Civil Procedure Rules, 2010 provides with respect to judgment against several defendants as follows; -
“Judgment may be given without amendment—
a) …
b) against such one or more of the defendants as may be found to be liable according to their respective liabilities.”
21. Black’s law Dictionary 10th Edition defines joint and several liability as follows: -
“Liability that may be apportioned among two or more parties or to only one or a few select members of the group at the adversary’s discretion. Thus, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity from non-paying parties.”
22. It follows that when liability is made to apply jointly and severally, each liable party is individually responsible for the entire obligation, but a paying party may have a right of contribution and indemnity against the non-paying party. For instance, following that concept, the court in the case of Astral Aviation Ltd v Tadis Travel & Tours Ltd & another [2018] KEHC 1169 (KLR) the Court said:
“In my earlier ruling delivered on July 10, 2018, I noted that the Court of Appeal issued the order for payment of costs against the applicants/defendants jointly and severally. Under such circumstances, the respondent is at liberty to execute against either all the judgment debtors or any one of them. It would be up to a party against whom execution has been levied to pursue the co-judgment debtors for compensation”
23. Similarly, the case of Hellen Njenga v Wachira Murage & another [2015] KEHC 4861 (KLR) cited the decision in Dubai Electronics –versus- Total Kenya & 2 Others Civil Case No. 870 of 1998 (unreported) where the court explained the concept of joint and several liability as follows;
“Clearly therefore where you have joint liability all the tortfeasors are and each one of them is liable to settle the full liability. However, in a purely several liability each tortfeasor is only liable to settle the sum due to the tune of his liability. Where, however, the liability is joint and/or several the plaintiff has the option either directing his claim against any one of the tortfeasors or making his claim against each one of the tortfeasors according to their individual liability. Either way he cannot recover more than the total sum decreed. However, the defendants are entitled to reimbursement from the co-defendants in the event that the plaintiff only opts to recover from one of them. That is my understanding of joint and several liability.”
24. It follows from the foregoing authorities that the 1st respondent can proceed to execute and obtain the whole of the decretal sum from any of the co-defendants before the lower court. The paying co-defendant will then claim compensation from the others. In the present case, the 1st respondent is going for execution against the applicant for half of the judgment sum.
25. This leads us to the next argument advanced by the applicant, what if the appeal by the co-defendants succeeds? Generally, the outcome of the appeal should only bind the parties to the appeal. As things stand now, the applicant has no appeal pending before this court. However, the applicant is a party to the pending appeal filed by the 3rd and 4th respondents herein as a respondent. No doubt the applicant will be supporting the 3rd and 4th respondent’s appeal as it is interested in a positive outcome for them. How the outcome of the appeal filed by the 3rd and 4th respondents affects the applicant depends on whether the issues raised in the pending appeal affect the applicant or are specific to the 3rd and 4th respondents. I have no hesitation in finding that the issues affect the applicant as well, seeing that they would be on either liability or assessment of damages or both. Whichever way, the applicants will be affected by the outcome of the appeal.
26. But that does not mean that the 1st respondent cannot proceed to execute the decree against the applicant since there is no order stopping them from doing so, the earlier order of stay having lapsed. Consequently, there is no basis for this court to deny the NTSC seeking release of the money deposited in court by the applicant as security for the due performance of the decree. The issue of the ability of the 1st respondents’ to pay back the sum deposited in court as security if the appeal goes against them does not arise at this point in time. The same was considered and determined in the application for stay.
27. In the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR) the court in considering the requirement for deposit of security pending appeal held that:-
“… a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls. Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal…. Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.” (Emphasis in italics by this court).
28. It is apparent from the foregoing holding of the court that security for due performance of the decree should be applied for the purpose for which it was intended, that is, payment to the decree holder, if the applicant was not successful at the appeal without putting the respondent/decree holder through the hardship of a laborious process of execution.
29. In the circumstances, I find that the application by the 1st respondents by way of NTSC herein has merit and the same is allowed. It is ordered that the whole sum of KShs 978,075/= deposited in court by the applicant to be released to the 1st respondents through their advocates on record.
30. Orders accordingly.
31. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 16th day of July 2024.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for applicant.
N/A for the 1st respondent.
N/A for 2nd, 3rd and 4th respondents.
Ummu: Court Assistant.